1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11

JOSEPH PETER SANCHEZ, ) NO. CV 20-5226-DDP (AGR)

) 12 Petitioner, ) ) 13 v. ) ) ORDER ACCEPTING FINDINGS 14

ATTORNEY GENERAL OF STATE ) AND RECOMMENDATION OF

OF CALIFORNIA, et al., ) MAGISTRATE JUDGE 15 ) Respondent. ) 16 ) ) 17 18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of 20 Habeas Corpus, the other records on file herein, the Report and 21 Recommendation of the United States Magistrate Judge (“Report”) and the 22 Objections. Further, the Court has engaged in a de novo review of those portions 23 of the Report to which objections have been made. The Court accepts the 24 findings and recommendation of the Report. 25 Petitioner does not object to the Report’s conclusions that Grounds Two 26 and Three are not cognizable on federal habeas review. (Obj. at 4; see also 27 Opp., Dkt. No. 17 at 8 (“Petitioner concedes and drops (2) double jeopardy claims 28 1 and (3) California’s writ processing.”) 2 Petitioner objects to dismissal of Ground One as time barred and 3 unexhausted. On April 1, 2009, a Los Angeles County Superior Court jury found 4 Petitioner guilty of second degree murder and found true gun enhancements 5 under Cal. Penal Code §§ 12022.53(b)-(d).1 (Lodged Document (“LD”) 1 at 4; LD 6 6 at 13.) Petitioner, who had a prior strike, was sentenced to 60 years to life in 7 prison. (LD 1 at 4.) 8 In his objections, Petitioner contends that the Report misconstrues Ground 9 One. Although Petitioner agrees that Ground One is based on ineffective 10 assistance of trial counsel, Petitioner explains that the ground is actually based 11 on newly discovered evidence. On August 12, 2013, over four years after trial, 12 Petitioner applied to the Veterans Administration (“VA”) for benefits. (Dkt. No. 1 13 at 47.) On May 24, 2017, the VA granted benefits based on its determination that 14 Petitioner has post traumatic stress disorder (“PTSD”), effective March 20, 2017. 15 (Dkt. No. 1 at 42-44.) On November 13, 2018, the VA issued a rating decision 16 that increased Petitioner’s disability rating from 50% to 70% from PTSD effective 17 January 16, 2018. Petitioner had served from November 8, 1988 through 18 November 7, 1992. (Id. at 46-47.) Petitioner argues counsel was aware of his 19 military service in the Gulf War and failed to investigate the possibility of PTSD. 20 (Id. at 9.) Counsel stated “either we bring up military or don’t bring it up at all.” 21 (Id. at 61.) 22 To the extent Petitioner argues that he is entitled to a later accrual date, his 23 argument does not overcome the time bar. Under 28 U.S.C. § 2244(d)(1)(D), the 24 statute of limitations starts to run on ‘the date on which the factual predicate of 25 the claim or claims presented could have been discovered through the exercise 26 27 1 The factual background of Petitioner’s conviction is described in the 28 California Court of Appeal on direct appeal. (LD 1 at 2-3.) 1 of due diligence.” As the Report explains, the “‘due diligence’ clock starts ticking 2 when a person knows or through diligence could discover the vital facts, 3 regardless of when their legal significance is actually discovered.” Ford v. 4 Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). Petitioner states that he applied 5 for VA benefits on August 12, 2013 “for Gulf War syndrome as his condition was 6 getting worse.” (Id. at 62.) Even assuming the clock started to run on May 24, 7 2017, after the VA granted benefits based on PTSD, the one-year statute of 8 limitations would expire one year later on May 24, 2018. Petitioner did not sign 9 his first state habeas petition until November 29, 2018 (LD 4), after the limitations 10 period had already expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th 11 Cir. 2003) (holding state habeas petition filed after expiration of statute of 12 limitation does not restart clock), 13 To the extent Petitioner argues that he is entitled to equitable tolling, he 14 fails to make the requisite showing. To be eligible for equitable tolling due to 15 mental impairment, Petitioner must meet a two-prong test: (1) the petitioner must 16 show that his mental impairment was an “extraordinary circumstance” beyond his 17 control “by demonstrating the impairment was so severe that either (a) petitioner 18 was unable rationally or factually to personally understand the need to timely file, 19 or (b) petitioner’s mental state rendered him unable personally to prepare a 20 habeas petition and effectuate its filing;” and (2) the petitioner must show that he 21 diligently pursued his claims “to the extent he could understand them, but that the 22 mental impairment made it impossible to meet the filing deadline under the totality 23 of the circumstances, including reasonably available access to assistance.” Bills 24 v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010). 25 Petitioner has not shown the requisite diligence. Petitioner was aware of 26 his military service during trial in 2009, applied for VA benefits on August 12, 27 2013, and was granted benefits on May 24, 2017, yet did not raise a PTSD- 28 1 related ineffective assistance of trial counsel until the constructive filing of the 2 Petition in this court no earlier than May 31, 2020. Petitioner did not raise a 3 PTSD-related ineffective assistance of trial counsel claim before the California 4 Supreme Court and, therefore, the claim remains unexhausted.2 (LD 8 at 3-4.) 5 There is no indication that a mental impairment made it impossible for Petitioner 6 to meet the filing deadline under the totality of the circumstances. Petitioner has 7 been able to articulate his claims. Petitioner was able to file an application for VA 8 benefits on August 12, 2013. He filed state habeas petitions on May 30, 2011 9 (LD 2), December 5, 2018 (LD 4), August 14, 2019 (LD 6), October 21, 2019 (LD 10 8) and March 30, 2020 (LD 17). See Stancle v. Clay, 692 F.3d 948, 959 (9th Cir. 11 2012). 12 The Court does not construe Petitioner to be arguing that FDA waivers for 13 military test drugs during the Gulf War constitute a state-created impediment that 14 prevented him from filing a timely federal habeas petition. 28 U.S.C. § 15 2244(d)(1)(B). Petitioner has asserted his ineffective assistance claim in the 16 Petition, albeit after the statute of limitations expired, and has not provided a time 17 frame when such a state-created impediment to filing a petition was removed. 18 See Felix v. Baker, 589 Fed. Appx. 382, 382-83 (9th Cir. 2015). 19 20 21 22 23 24 2 On the contrary, Petitioner’s claims before the California Supreme Court appeared to argue that trial counsel was prevented from developing evidence by 25 Petitioner’s belief that he could not discuss forced FDA waivers and military test drugs with counsel. (LD 13, Dkt. No. 16-13 at 3 (“at my trial when defense 26 counsel asked me about military history I was convinced I could not bring up mental side effects and mental test drugs because of waivers and orders not to 27 discuss”); LD 12 at 1 (“I believed under duress I had no rights involved with FDA waiver and paranoid to discuss test drugs at time of trial, which prevented my 28 public defender from developing the evidence”); LD 15 at 3, 10, 12.) 1 IT THEREFORE IS ORDERED that Respondent’s motion to dismiss the 2 Petition for Writ of Habeas Corpus is granted, and that judgment be entered 3 denying the Petition for Writ of Habeas Corpus and dismissing this action with 4 prejudice. Any other pending motions are denied. 5 ' 6

7] DATED: _ 949-27 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28